Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101121

Original file (ND1101121.rtf) Auto-classification: Denied

ex-FA, USN

Current Discharge and Applicant’s Request

Application Received: 20110324

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        1996 0 412 - 19960505     Active:

Period of Service Under Review:
Date of Current Enlistment: 19960506     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990222      Highest Rank/Rate: MMFN
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 2.3 ( 3 )      Behavior: 1.3 ( 3 )        OTA: 2.00

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : UA: 0815, 19961228 until 0715, 19961230, 1 day; 19980525-19981223, 212 days CONF:

NJP : 2

- 19970516: NFIR (extracted from NAVPERS 1070/604 Awards Page)

- 19971229 :      Article (Absence without leave)
         Awarded: NFIR Suspended: NFIR
         * [Extracted from Evaluation Report & Counseling Record , d a t e d 19980123]

S CM :             SPCM:    C C :      Retention Warning Counseling :

Types of Documents Submitted/reviewed

Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:
         Health/Medical Records:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.        Applicant contends his discharge was unjust based on his record of service.
2.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date: 20 1 2 05 23             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The record reflect ed two nonjudicial punishments (NJPs) for unspecified o f the Uniform Code of Military Justice (UCMJ) and violation of Article 86 ( Absence without leave , 0715 on 28 December to 0715 on 30 December 1996, terminated by his surrender). The record also indicated a 212 - day period of una uthorized absence (UA) , terminated by police apprehension, which is a violation of UCMJ Article 86. Based on the serious nature of the offenses committed by the Applicant, his command referred him for trial by S pecial C ourt- M artial. After consult with a qualified counsel, the Applicant submitted a request to his Commanding Officer for administrative separation in lieu of trial by court - martial (SILT). In his request, the Applicant admitted guilt to the desertion offense (UCMJ Article 85) for which he was charged and acknowledged his complete understanding of his request and the ramifications if awarded an Under Other Than Honorable Conditions discharge as a result of the administrative separation in lieu of trial. On 16 February 1999, the Convening Authority accepted the Applicant’s request and directed that he be administratively separated from the Navy with an Under Other Than Honorable Conditions discharge. The Applicant was discharged on 22 February 1999 as directed.

: (Decisional) ( ) . The Applicant contends his discharge was unjust based on his record of service. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standa rds of discipline of the Naval S ervice. The Applicant requested discharge for the good of the service to escape trial by court-martial that could have resulted in confinement and a B ad C onduct D ischarge . In the request , the Applicant waived his right to submit a written statement to the Convening Authority and admitted guilt to the charges preferred against him (UA from 25 May-23 December 1998, 212 days) . He further certified a complete understanding of the negative consequences of an U nder O ther T han H onorable C onditions discharge. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his action s. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors and f alls short of w hat is required for an upgrade. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement and a customer letter of appreciation as evidence of post-service accomplishment s . Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion of these items alone does not guarantee an upgrade as each discharge is reviewed by the Board on a case by case basis. T he NDRB determined the characterization shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the separation in lieu of trial separation p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
10 July 2000, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

C . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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NAVY | DRB | 2011_Navy | ND1101121

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